Welcome back to Legal Geek. This week, we take a look at the biggest piece of music to hit the public domain of copyright perhaps in history, which happened thanks to a court decision earlier this week. That song, of course, is...Happy Birthday!
https://archive.org/details/LegalGeekEp52
On Tuesday, a California federal court ruled that Warner Music Group no longer holds a valid copyright in this iconic Happy Birthday song. This will end a licensing revenue stream from filmmakers and other users of about $2 million a year, thanks to it costing about $1,500 to acquire a single license from Warner for this property. The decision was based on new fact findings that the company which Warner acquired these rights from in 1988 had only ever gotten a copyright in the melody, not the words, and the melody is too old to still be covered by current copyright terms.
Thus, one of the biggest licensed properties in music is now in the public domain, subject to Warner's appeal of course. But other than the appeal, there are still a couple of interesting questions left.
First, this decision will likely cause further scrutiny in chain of title documents that explain how IP rights like copyrights were sold and transferred all the way from the original owner to the current owner. With copyright rights lasting up to and over a century now, these documents can be difficult to maintain or acquire, leading to decisions like the one against Warner. The documents always win in the legal field.
Second, this decision makes the lyrics of Happy Birthday into an orphan work, which is a term commonly applied to works that are not technically in the public domain but nobody can figure out who actually owns the rights. As copyright terms have extended more and more thanks to Congress, we now have copyright terms of life of author plus 70 years for individuals, and 95 or 120 years for corporations. That makes it very hard to find rightful owners of copyrights that do exist on very old works, a problem that grows more and more with copyright term extensions. One wonders how this iconic property joining the ranks of Orphan Works will affect the debate the next time extension of copyright terms come up, which will likely be soon thanks to the corporate interests of Disney and similar organizations.
The Bottom Line is, we can all finally sing Happy Birthday on YouTube without risking a nasty license demand, and that's a good thing in the face of the crazy long copyright term in the U.S.
Until next time, don't feel too bad for Warner, as this week they also got another federal court ruling that the Batmobile is a protectable character under copyright. Of course, it will likely be hard to make $2 million a year licensing the Batmobile...but holy copyright law, Batman!
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Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Friday, September 25, 2015
Thursday, September 17, 2015
Legal Geek No. 51: Dancing Baby Wins Under DMCA (Sort Of)
Welcome back to Legal Geek. This week, we review the important copyright decision rendered this week by the 9th Circuit Court of Appeals in Lenz v. Universal Music, also referred to as the Dancing Baby DMCA Takedown case.
https://archive.org/details/LegalGeekEp51
Stephanie Lenz is a mother who posted a YouTube video in 2007 of her toddler dancing to a Prince song, which became a viral video. (Insert clip of Prince) On Monday, a panel of 9th Circuit judges decided that Lenz had the right to force Universal Music Group to trial to determine whether that music industry organization had properly considered fair use before sending a DMCA takedown notice in 2007 to force the video off of YouTube.
The DMCA, or Digital Millennium Copyright Act, refers to a 1998 law which heightened penalties for copyright infringement on the Internet, while also adding an exemption from liability for internet service providers like YouTube from liability. The DMCA creates a safe harbor for those service providers who comply with proper takedown notices when a copyright owner asserts content posted is infringing their valid copyright.
The DMCA takedown process works like this: a copyright owner has an agent sent a DMCA takedown notice to a service provider like YouTube, as was the case here where Universal represented the interest of copyright holders to the Prince song used in Lenz's video. If this notice complies with language requirements and is specific enough, the service provider must remove the content and has the option to file a DMCA counter notice if it is believed that it has the rights to publish the content. When this happens, the original submitter of the takedown notice must take the fight to court within 10-14 days, or the content can be republished on the website or service.
In this case, Universal had argued that fair use in copyright is only an affirmative defense and that it was not necessary to worry about this concept when requesting DMCA takedowns. The Court disagreed, indicating that failure to consider fair use before issuing a takedown notice would make a triable question of whether a subjective good faith belief was present that the work was actually infringing the copyright asserted. Although Universal could still avoid the nominal damages that could be awarded for bad faith takedown notices under DMCA by proving it considered fair use, that at least must go to trial to be proven, which is a small win for the plaintiff Lenz.
So does this decision mean the largely automated process of scanning online content and sending mass DMCA takedowns by big companies like record labels and movie studios will no longer work? Not so fast, my friends.
Fair use is a complicated 4 factor balancing test of copyright law which balances various equitable factors like nature of the alleged infringing work and amount of content taken to determine if re-using a copyrighted work is protected as a fair use. It's a complicated topic in and of itself that we will save for another day.
Although it could be argued that computerized algorithms really only consider one of these factors, namely the amount of the work copied, it will likely be difficult to argue that these scanning algorithms are ignoring fair use altogether (assuming the filter applied would let some content through without prompting a DMCA takedown notice). Yet that is what will be required to prove a lack of considering fair use, which would lead to improper takedown notice damages for the copyright owner. Put simply: it will be exceedingly difficult to stop copyright owners from proving a good faith belief when they file takedown notices that are later challenged as improper.
The Bottom Line is, computerized or automated review of online content and mass DMCA takedown notices are here to stay, like it or not. This decision in Lenz clarifies how DMCA conflicts in court will play out when they occur, but it is not a sweeping enough change to dramatically alter how copyright owners do business to protect their IP in today's online marketplace.
Until next time, don't rail against the DMCA process too much, as it does strike somewhat of a good balance between online content creators and those copyright owners with legitimate rights to protect.
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
https://archive.org/details/LegalGeekEp51
Stephanie Lenz is a mother who posted a YouTube video in 2007 of her toddler dancing to a Prince song, which became a viral video. (Insert clip of Prince) On Monday, a panel of 9th Circuit judges decided that Lenz had the right to force Universal Music Group to trial to determine whether that music industry organization had properly considered fair use before sending a DMCA takedown notice in 2007 to force the video off of YouTube.
The DMCA, or Digital Millennium Copyright Act, refers to a 1998 law which heightened penalties for copyright infringement on the Internet, while also adding an exemption from liability for internet service providers like YouTube from liability. The DMCA creates a safe harbor for those service providers who comply with proper takedown notices when a copyright owner asserts content posted is infringing their valid copyright.
The DMCA takedown process works like this: a copyright owner has an agent sent a DMCA takedown notice to a service provider like YouTube, as was the case here where Universal represented the interest of copyright holders to the Prince song used in Lenz's video. If this notice complies with language requirements and is specific enough, the service provider must remove the content and has the option to file a DMCA counter notice if it is believed that it has the rights to publish the content. When this happens, the original submitter of the takedown notice must take the fight to court within 10-14 days, or the content can be republished on the website or service.
In this case, Universal had argued that fair use in copyright is only an affirmative defense and that it was not necessary to worry about this concept when requesting DMCA takedowns. The Court disagreed, indicating that failure to consider fair use before issuing a takedown notice would make a triable question of whether a subjective good faith belief was present that the work was actually infringing the copyright asserted. Although Universal could still avoid the nominal damages that could be awarded for bad faith takedown notices under DMCA by proving it considered fair use, that at least must go to trial to be proven, which is a small win for the plaintiff Lenz.
So does this decision mean the largely automated process of scanning online content and sending mass DMCA takedowns by big companies like record labels and movie studios will no longer work? Not so fast, my friends.
Fair use is a complicated 4 factor balancing test of copyright law which balances various equitable factors like nature of the alleged infringing work and amount of content taken to determine if re-using a copyrighted work is protected as a fair use. It's a complicated topic in and of itself that we will save for another day.
Although it could be argued that computerized algorithms really only consider one of these factors, namely the amount of the work copied, it will likely be difficult to argue that these scanning algorithms are ignoring fair use altogether (assuming the filter applied would let some content through without prompting a DMCA takedown notice). Yet that is what will be required to prove a lack of considering fair use, which would lead to improper takedown notice damages for the copyright owner. Put simply: it will be exceedingly difficult to stop copyright owners from proving a good faith belief when they file takedown notices that are later challenged as improper.
The Bottom Line is, computerized or automated review of online content and mass DMCA takedown notices are here to stay, like it or not. This decision in Lenz clarifies how DMCA conflicts in court will play out when they occur, but it is not a sweeping enough change to dramatically alter how copyright owners do business to protect their IP in today's online marketplace.
Until next time, don't rail against the DMCA process too much, as it does strike somewhat of a good balance between online content creators and those copyright owners with legitimate rights to protect.
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
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